APPLICABILITY OF THE CASE OF ALTMAN V. THE UNITED STATES TO SPECIAL AGREEMENTS CONCLUDED UNDER A GENERAL TREATY OF ARBITRA

TION

In a case decided on May 13, 1912, entitled B. Altman & Co. v. The United States, there is an interesting passage in the opinion of the Supreme Court of the United States, as delivered by Mr. Justice Day, which throws light upon the nature of an agreement concluded by the executive in pursuance of authority conferred by Act of Congress. It appears from the decision of the Supreme Court that a certain bronze bust was imported by the appellants from France and was assessed "a duty of 45 per cent ad valorem under paragraph 193 of the Tariff Act of 1897 (30 Stat. 151), which covers articles or wares not specially provided for in the act, composed wholly or in part of metal, and whether partly or wholly manufactured. A protest was filed by the importers, in which they contended that the bust should be classed as statuary under the commercial reciprocal agreement with France (30 Stat. 1774), which was negotiated under the authority contained in section 3 of the Tariff Act of 1897 to make reciprocal agreements with reference, among other articles, to paintings in oil or water colors, pastels, pen and ink drawings, and statuary."

Section 3 of the Tariff Act of June 24, 1897, authorized the President to negotiate "commercial agreements in which reciprocal and equivalent concessions may be secured in favor of the products and manufactures of the United States; whenever the government of any country, or colony, producing and exporting to the United States the above mentioned articles, or any of them, shall enter into a commercial agreement with the United States, or make concessions in favor of the products, or manufactures thereof, which, in the judgment of the President, shall be reciprocal and equivalent, he shall be, and he is hereby, authorized and empowered to suspend, during the time of such agreement or concession, by proclamation to that effect, the imposition and collection of the duties mentioned in this act, on such article or articles so exported to the United States from such country or colony, and thereupon and thereafter the duties levied, collected and paid upon such article or articles, shall be as follows, namely," and so forth.

Pursuant to such authorization, the President concluded a commercial agreement with France on May 30, 1898, which, among other things, admitted paintings in oil or water colors, pastels, pen and ink drawings,

and statuary, at 15 per cent ad valorem. The question in the particular case was whether the bust imported by the appellant should pay 45 per cent under the Tariff Act or 15 per cent under the special agreement of May 30, 1898. The court found that the object did not properly fall within the terms of the special agreement, with which holding the present comment has nothing to do. In passing, however, upon the special agreement concluded by the President under section 3 of the Tariff Act, Mr. Justice Day, speaking for the court, held that the reciprocal agreement was such a treaty within the meaning of section 5 of the Circuit Court of Appeals Act as to create the right of direct appeal to the Supreme Court. Thus,

Generally, a treaty is defined as "a compact between two or more independent nations with a view to the public welfare." 2 Bouvier's Dictionary, 1136. True, that under the Constitution of the United States the treaty making power is vested in the President, by and with the advice and consent of the Senate, and a treaty must be ratified by a two-thirds vote of that body (Art. II, sec. 2), and treaties are declared to be the supreme law of the land (Art. VI); but we are to ascertain, if possible, the intention of Congress in giving direct appeal to this court in cases involving the construction of treaties. As is well known, that act was intended to cut down and limit the jurisdiction of this court, and many cases were made final in the Circuit Court of Appeals which theretofore came to this court, but it was thought best to preserve the right to a review by direct appeal or writ of error from a Circuit Court in certain matters of importance, and, among others, those involving the construction of treaties. We think that the purpose of Congress was manifestly to permit rights and obligations of that character to be passed upon in the Federal court of final resort, and that matters of such vital importance arising out of opposing constructions of international compacts, sometimes involving the peace of nations, should be subject to direct and prompt review by the highest court of the nation. While it may be true that this commercial agreement, made under authority of the Tariff Act of 1897, section 3, was not a treaty possessing the dignity of one requiring ratification by the Senate of the United States, it was an international compact, negotiated between the representatives of two sovereign nations and made in the name and on behalf of the contracting countries, and dealing with important commercial relations between the two countries, and was proclaimed by the President. If not technically a treaty requiring ratification, nevertheless it was a compact authorized by the Congress of the United States, negotiated and proclaimed under the authority of its President. We think such a compact is a treaty under the Circuit Court of Appeals Act, and, where its construction is directly involved, as it is here, there is a right of review by direct appeal to this court.

It thus appears that the Supreme Court is of the opinion that a special agreement with a foreign nation concluded by the President, in virtue. of a general authorization by Act of Congress, was, for purposes of

judicial decision, to be considered a treaty, even although it was "not a treaty possessing the dignity of one requiring ratification by the Senate of the United States." That is to say, the President may, by general act, be authorized to conclude a special agreement with a foreign power, and this special agreement, although not a treaty in the strict and technical sense of the word, for it does not require the advice and consent of the Senate, is nevertheless "an international compact" binding the respective parties to it. The question of delegation of power was not raised, nor was it passed upon by the court; the validity of the delegation would seem to be settled in favor of such commercial agreements by the case of Field v. Clark, 143 U. S. 649 (1891).

The case, therefore, would seem to recognize a twofold division of international agreements, namely, "international compacts" of such dignity as to require the advice and consent of the Senate, and “international compacts" which do not possess such dignity and do not therefore require the advice and consent of the Senate. In other words, the legislative branch of the government may pass a general act laying down definite lines and may authorize the President to enter into "international compacts," either to carry out its express provisions, or to modify them in accordance with an express authorization, whenever in his judgment facts or conditions exist, upon which the authorization is predicated.

The importance of this decision of the Supreme Court and its applicability to treaties of arbitration were called to the attention of the recent Mohonk Conference on May 18, 1912, by Charles Henry Butler, Esquire, Reporter of the Supreme Court. This contention would appear to be correct; for, if the President can be authorized by a general Act to enter into an "international compact" with nations to effect the purposes of the Act, it would seem to be clear that a general treaty of arbitration for a treaty is, by the express words of the Constitution, a general law of the United States, differing in origin though not in effect from a statute might be negotiated by the President, advised and consented to by the Senate, and that the special agreement, the "international compact" required to carry it into effect in a given case, might properly be concluded by the President in accordance with a general authorization. Such an agreement would not possess the dignity of the original general treaty of arbitration; it would, however, be an "international compact, negotiated between the representatives of two sovereign nations and made in the name and on behalf of the contracting

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countries, and dealing with important relations between the two countries." The Supreme Court has held that an "international compact" does not in all cases require the advice and consent of the Senate; now a special agreement, entered into with a foreign state in order to give effect to a general treaty of arbitration, provided the general treaty defines clearly the character of cases to which its provisions are applicable, would seem to differ in its accidental but not in its essential character from a special agreement negotiated under a general Act of Congress.

Under the general treaty of arbitration a special agreement might thus be negotiated by the President without submitting it to the Senate and delay thus avoided, and the query arises, could not the question as to whether the case to be submitted falls within the lines laid down in the general treaty, under appropriate circumstances, as in the case of Altman v. United States, be tested in the courts? If this should prove to be the case, would not the objection of the Senate to a special agreement drafted by the President without submission to the Senate be largely overcome?

THE BASIS OF MEDIATION IN THE WAR BETWEEN ITALY AND TURKEY

Since the last issue of the JOURNAL the indirect attempts at mediation by the Powers in the war between Italy and Turkey have resulted in the issuance of a definite statement by each of the belligerent parties as to the basis on which they would be willing to consider terms of peace. The official statements of the two governments bring us, however, no nearer a solution of the controversy. The deadlock is only more complete in that the belligerents publicly declare that they mean to continue to stand where they have hitherto shown every intention of standing.

It will be remembered that on February first a circular note was drawn up by the Russian Government and communicated to the Powers, exhorting them to consider seriously the situation, and to make ready to seize a favorable opportunity for mediation in the war between Italy and Turkey. The note was, of course, fully justified with respect to the Powers at war by Article 3 of the Convention for the Pacific Settlement of International Disputes, by which the contracting Powers agree that it is "expedient and desirable that one or more Powers, strangers to the dispute, should, on their own initiative, and so far as circumstances may allow, offer their good offices or mediation to the States at variance."

The representatives of the five Powers, Austria-Hungary, France,

Germany, Great Britain and Russia, first took steps to obtain from the Italian Government a statement as to the terms upon which it would be willing to conclude peace. On March 16, the Corriere della Sera, a Roman newspaper, published unofficially the text of a note delivered by the Marquis de San Giuliano to the ambassadors of the Powers the afternoon before. A summary of the note was given in the London Times of March 20. The note begins with an expression at once of thanks from the Italian Government for the suggestion of mediation by the Powers, and of full agreement with the reasons which led them to that act. After briefly stating the causes which led Italy to declare war upon Turkey, and reiterating the determination of Italy not to disturb the status quo in the Balkans, it insists that the recognition by Turkey of the full and complete sovereignty of Italy over Tripoli and Cyrenaica must precede any discussion of the conditions upon which peace may be concluded. The note then sets forth certain points of reciprocal concession on the part of both Italy and Turkey with respect to the administration of Tripoli under Italian sovereignty, in order to save the amour propre of Turkey, which is thus called upon to renounce her former province. Italy proposes that in the treaty of peace Turkey should merely recognize the "new state of things," (i. e., Italian occupation), while the Powers would be called upon to recognize as a "juridical situation" the Italian proclamation of sovereignty over Tripoli.

Just one month later the ambassadors of the same Powers paid separate visits to the Foreign Minister at Constantinople, pointing out to him in friendly terms the danger to European peace which was involved in the continuation of hostilities between Turkey and Italy, and requesting to be informed of the conditions upon which the Porte would be ready to conclude peace. On April 23, the Turkish Government sent to the ambassadors an official statement of its position with respect to the offer of mediation. The French text of the reply is to be found in full in the London Times of May 1st.

The Turkish Government first acknowledges its appreciation of the motives which led the great Powers to inquire of the belligerents the conditions upon which mediation would be acceptable, and thanks them for their friendly communication to that effect. The government then recalls the efforts which it made before the war and during the first days of hostilities to satisfy the Italian demand for concessions in Tripoli, so far as this could be done without compromising its sovereignty. It likewise recalls, doubtless with a suggestion of irony, that at